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[2018] ZALCJHB 138
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Palabora Copper (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1810/15) [2018] ZALCJHB 138 (27 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
No.: JR1810/15
In the
matter between:
PALABORA
COPPER (PTY) LTD
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION (‘CCMA’)
First Respondent
JOSIAS
SELLO MAAKE N.O.
Second Respondent
JAN
STEPAHNUS FOURIE
Third
Respondent
Heard:
21 July 2017
Delivered:
27 March 2018
JUDGMENT
MONI,
AJ
[1]
This is a review application of an award by Josias Sello Maake (the
Commissioner) dated 6 September 2015 in the third Respondent’s
(Mr Fourie) favour.
The
Facts
[2]
The facts presented here are a high-level overview of the evidence
read and they are as follows.
[3]
Mr Fourie worked as a Superintendent of the Vermiculite Operations
(VO) Workshop at the applicant. He began his tenure with
the
applicant on 1 September 2004. At the time of his dismissal, on 17
October 2014, he had worked for the applicant for approximately
10
years, had a clean disciplinary record and earned R79 577.00 per
month.
[4]
Mr Fourie was dismissed for ‘deliberate abuse of company
property’. As such, in or during July 2014, he requested
a
technician, Mr Louw, via Mr Burger (Mr Louw’s supervisor) to
modify his son’s motorbike carrier. Mr Fourie, required
this to
be done once all work at the VO workshop had been completed. In other
words, not to have the modification interfere with
Mr Louw’s
daily tasks.
[5]
Mr Verheem (the Maintenance Electrician at the VO) brought Mr
Fourie’s transgression to the applicant’s attention
in
September 2014, only. This was after Mr Fourie had caught him trying
to remove wooden pallets from the applicant and instructed
him to
return same. Mr Verheem claimed to have a permission slip to remove
the wooden pallets however same was neither produced
at the time,
during Mr Fourie’s disciplinary enquiry nor at the Commission
for Conciliation, Mediation and Arbitration (CCMA)
during the
arbitration proceedings.
[6]
Mr Louw, modified the motorbike carrier extensively. He requested
piping/tubing and paint for it. This was, on a balance of
probabilities, supplied by Mr Fourie, even though he could not prove
it. I hold this view as more probable than having used VO
workshop’s
equipment because the VO workshop does not keep 12 mm piping/tubing
and does not utilise white paint.
[7]
The above, notwithstanding, is for the applicant to prove that the 12
mm tubing/piping and paint belonged to the applicant which
they have
not done. Further, it is for the applicant to prove the probability
that Mr Fourie, deliberately abused company property.
[8]
The Commissioner found that the charge of deliberately abusing
company property was wide enough to encapsulate incorporeal things
such as company time. This is reasonable. Further, the Commissioner
found that Mr Fourie’s guilty plea did not fall within
the
purview of the charge and so he did not intend to plead guilty to the
charge. This is reasonable.
[9]
The applicant failed to lead any evidence at the disciplinary enquiry
to prove Mr Fourie’s guilt on a balance of probability.
This is
according to the Commissioner, procedurally unfair.
[10]
The Commissioner held Mr Fourie’s dismissal to be
substantively unfair. Only Mr Verheem was led on this score and
the
Commissioner believed that the witness was not credible and reverted
to a single witness rule when dealing with the witness.
[11]
Mr Fourie was retrospectively reinstated and was to assume his duties
on or before 21 September 2015, his dismissal sanction
was
substituted with a final written warning and he was to receive back
pay in the sum of R955 140 payable on or before 30 September
2015.
The
Grounds for Review
[12]
The applicant contends that the award falls to be reviewed and set
aside on the following grounds:
11.1 The
Commissioner disregarded Mr Verheem’s evidence and failed to
assess the credibility of competing
versions; and
11.2 The
Commissioner misdirected himself in determining whether the sanction
of dismissal was fair.
The
Disciplinary Enquiry and Procedural Fairness
[13] The applicant believes that it
held a disciplinary enquiry, when it did not.
[14]
At the point when the chairperson, Mr Expect Ntsepe (the Mining
Operations Manager), asked Mr Fourie to plead, Mr Fourie pleaded
guilty to a lesser charge of ‘doing private work without
requesting permission’. Mr Fourie did not plead guilty to
the
actual charge. However, the chairperson believed that he had.
[15]
The chairperson did not catch the anomaly even though he requested a
plea explanation of Mr Fourie to which Mr Fourie stated
that he
pleads guilty to ‘neglect[ing] to obtain permission to do my
private job from my manager’ he did not realise
that Mr Fourie
pleads not guilty to the charge. The chairperson proceeded to
evidence in aggravation and mitigation without allowing
Mr Fourie an
opportunity to hear the evidence against him and attempt to defend
same.
[16]
The applicant, unwittingly, foregoes a fundamental principle in our
Labour Law; the
audi altarem
partem
rule. It is for
this reason that I state that there was no hearing held.
[17]
Considering the above, the
dismissal of Mr Fourie is procedurally unfair
[1]
.
The
Arbitration and Substantive Fairness
[18]
Mr Kenny Rambuda’s, (Employer Relations Specialist for the
applicant), greatest hurdle was not procedure (procedural
unfairness
was a foregone conclusion in this matter and should have been acceded
to), it was the substantive fairness component
of Mr Fourie’s
dismissal. As arbitrations are hearings
de novo
, the applicant
had a second bite of the proverbial cherry which mitigated the
applicant’s risk of Mr Fourie being returned
to his post, as
opposed to being compensated only.
[19]
All the applicant had to do was, firstly, block out all the
superfluous ‘white-noise’ about what Mr Fourie was
willing to plead guilty to; and, secondly, concentrate on proving
that Mr Fourie was guilty of the charge as alleged on a balance
of
probabilities.
[20]
For this, the applicant needed
to prove the existence of the rule, the nature and importance of the
rule breached; whether the employee
had knowledge of the rule,
whether the rule was consistently applied; and whether dismissal was
an appropriate sanction
[2]
.
[21]
There are hurdles within this rubric and if the applicant had applied
its mind to this case, its presentation would have been
stronger,
such as:
20.1 the
nature and importance of the rule breached. There is an unwritten
rule allowing employees the opportunity
to do private work provided
permission is obtained and granted. If employees obtain permission to
do private work then it cannot
be construed by the applicant that
their property is being abused, deliberately. The unwritten rule
seems to undermine the integrity
of the written rule. In this court’s
mind, the applicant’s property is being abused regardless.
20.2 Further,
as evidenced during the arbitration, the rule is not consistently
applied, and sanctions therefore
differ. This is mentioned by the
Commissioner in the award.
20.3 Also,
the
disciplinary action guidelines
[3]
state that ‘an enquiry will be conducted and action short of
dismissal or dismissal is probable’. Whilst offence 14
is
deliberate abuse of company property the ‘
likely’
outcome is dismissal; it is not a foregone conclusion. It leaves the
recommendation of dismissal entirely in the discretion of
the
chairperson and after the requisite evidence is heard. The requisite
evidence was not heard.
[22]
The Commissioner found that the applicant did not break the rule.
This, in the circumstances wherein only Mr Verheem was led,
is not
unreasonable.
[23]
As mentioned, the chairperson did not undertake what was required of
him. Leading the chairperson at arbitration only muddied
the waters
with incoherency.
[24]
Further, when I read the initial statements made by the three
witnesses, taken during the investigation by Mr Matsepe, the
investigator, all of them differ in material respects. This was not
considered by the chairperson nor introduced by the applicant
when
leading Mr Verheem.
[25]
Had the applicant led Mr Louw he would have ascertained whether the
work done was a deliberate abuse of company property, such
as
deliberate abuse of tools and time, or not. It was Mr Louw who
received permission from Mr Burger to do private work. Thus,
Mr Louw
had immunity from prosecution and therefore was free to testify.
Instead Mr Verheem testified that Mr Louw was not dismissed
for the
part he played in Mr Fourie’s purported misconduct. Mr Verheem
is wrong.
[26]
Mr Verheem was led to prove the reasonable employer test on behalf of
the applicant. This is a person who is very much Mr Fourie’s
junior. He was,
inter alia,
caught red handed by Mr
Fourie, removing the applicant’s property (in this Court’s
mind that is either unlawful
possession or theft). This Court doubts
that Mr Verheem had permission to remove the wooden pallets,
otherwise, I see no reason
why he proceeded to return them. This
Court has already noted that at no stage did Mr Verheem present his
permission slip, this
causes the Court to suspect the veracity of the
claim. No doubt the Commissioner suspected this too.
[27]
Further, the above incident stirred ‘an emotion’ in Mr
Verheem to prove to Mr Fourie that he is not ‘untouchable’.
The Commissioner encapsulates this as vengeance or revenge. This
Court does not see this presumption as unreasonable.
[28]
Mr Verheem, was not disciplined for his transgression. Mr Fourie
believed the scolding he gave Mr Verheem to be sufficient
under the
circumstances. According to the code of conduct Mr Verheem was facing
dismissal. Mr Verheem only came forward to teach
Mr Fourie a lesson,
albeit two months after the fact. When asked during the arbitration
if he intended to report Mr Fourie’s
transgression he stated
that ‘but for Mr Fourie’s handling of his attempt to
remove the pallets, he would not have
reported the transgression’
or words to that effect.
[29]
For reasons only known to the applicant, it believes Mr Verheem’s
account as more cogent then the rest, when he was not.
Also, it
believes Mr Fourie should have led Mr Louw. This goes against the
rules of the onus of proof.
[30]
Mr Burger contradicts Mr Verheem, he testifies that he does not know
how long Mr Louw took in modifying the motorbike carrier.
This is
because whilst at work he does other things which take him away from
Mr Louw. Mr Verheem states that it took Mr Louw 3
days to modify the
motorbike carrier, however, Mr Verheem also did other things which
took him away from Mr Louw. So how does Mr
Verheem know? If it was
because Mr Louw said so; then all the more reason for Mr Louw to
testify on behalf of the applicant.
[31]
Further, Mr Verheem did not know that the workshop does not keep 12
mm pipes and does not have white paint. Mr Burger testified
that he
placed the pipes/tubing on the shelves for Mr Louw. So, when Mr
Verheem sees Mr Louw taking the tubing/piping from the
shelves, he
assumes it was company property, when it is not. Thirdly, Mr Burger
testified that he received a packet with white
paint and a slip in it
from Mr Fourie. Mr Burger gave the packet of white paint to Mr Louw
for the motor bike carrier. The workshop
does not keep white paint.
Mr Verheem does not know this.
[32]
Lastly, Mr Verheem did not consider that the workshop operates at
97.5% productivity under Mr Fourie’s guidance, thus
Mr Louw
only worked on the motorbike carrier when he had nothing further to
do.
[33]
I am guided by the principles
enunciated in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Kie SA
and Others
[4]
in resolving those disputed facts. In nailing the applicant’s
colours to Mr Verheem’s mast the applicant must stand
or fall
on what he said which compared to,
inter
alia
, Mr Burger and Mr
Fourie is unreasonable, improbable and not credible. As such, it is
uncorroborated by Mr Louw, Mr Verheem has
no first-hand knowledge of
the make-up of the carrier and whether it belongs to the applicant or
Mr Fourie, he is clearly biased,
his evidence was contradicted by Mr
Burger and his demeanour was defensive. The Commissioner was correct
in proceeding with Mr
Verheem’s evidence with caution. In so
doing, and in not leading any other witnesses on the substantive
element of the rubric,
the applicant failed to prove on a balance of
probabilities that Mr Fourie was guilty of the charge.
[34]
Mr Fourie, always stated that he made a mistake in not obtaining
permission from the applicant. He maintained his innocence
regarding
the ‘deliberate abuse of company’s property’. The
Commissioner did not believe that Mr Fourie broke
the rule for which
he was charged. Considering the evidence led, this conclusion is
entirely reasonable. If the Commissioner believed
that no rule was
broken he need not continue with the reasonable employer rubric.
[35]
However, in this regard, this Court does not understand the purpose
of mentioning that the sanction of dismissal was harsh
or that the
dismissal should be substituted with a warning. In this regard, the
Commissioner is wrong and has misdirected himself.
It seems as if he
had a momentary lapse of reason, this court saying this is not
excusing the Commissioner’s reasoning, as
such if Mr Fourie is
not guilty of the charge there is no reason for the Commissioner to
canvass the severity of the sanction or
substitute same. Does this
somehow negate the award? This Court does not believe that it does.
[36]
Perhaps the Commissioner’s misdirection comes from the
applicant’s Mr Rambuda, who plays a part in this dispute,
as if
he is unsatisfied with being just the representative. At the outset,
the applicant delayed the hearing of the arbitration
by bringing an
in
limine
point, regarding the certificate of outcome, which
wasted public time and resources. Further, he allowed red herrings to
cloud
the issues and believed that the Commissioner is interfering
with his cross examination of Mr Fourie, when he was asked to desist
from ventilating that which the Commissioner was not required to
adjudicate. This is a debate that went on for quite a few pages.
Mr
Rambuda in an affidavit calls it misconduct on the part of the
Commissioner, this Court believes it is intentional torpor on
the
part of Mr Rambuda. I hold this view because in a fit of unprovoked
pique, Mr Rambuda ranted at how unintimidated he was by
Mr Burger and
how Mr Burger intimidates everyone at work. I believe that this was
unnecessary conduct meant to detract from the
weaknesses in the
applicant’s case, the execution thereof was in poor judgment
and of no potency.
[37]
In the above regard, I am
guided by
Total Support
Management (Pty) Ltd and
Another v Diversified Health
Systems
(SA) (Pty) Ltd
[5]
wherein Commissioner’s commit a misconduct should their
impartiality be deliberate for one party or a conscious bias in
favour of the successful party. In requesting Mr Rambuda to assist
the Commissioner in getting a handle on the dispute before him,
the
Commissioner was rightfully intimating that Mr Rambuda was not on
point. When Mr Rambuda began to debate the points with the
Commissioner, the Commissioner reiterated that the case is for Mr
Rambuda to make and he must run the matter how he deems fit.
It is
most unfortunate that Mr Rambuda failed to heed the Commissioner’s
advice. The Commissioner did not misconduct himself.
[38]
The only complaint this Court has about the Commissioner’s
award; is, how it is drafted. The award is not succinct or
simple
enough to follow during a first perusal and even a second perusal.
This is disappointing. However, it does not make the
Commissioner’s
finding incorrect or wrong. It is the Court’s belief that had
it been written in the correct way; the
applicant would have more
readily accepted the outcome.
[39]
In taking all the circumstances into account, but for the finding
that the sanction was too harsh and substituting same (this
is a
misdirection of fact and law), the Commissioner’s conclusion -
that Mr Fourie was substantively and procedurally unfairly
dismissed
– was not incorrect. This Court believes that the
Commissioner’s decision is not one that no other reasonable
Commissioner could not reach.
[40] In the premises, the following
order is made:
Order
1.
The review application regarding the substitution of the dismissal
sanction for
a final written warning valid for 6 months is upheld;
and
2.
The review application is dismissed with costs.
_____________________
N
Moni
Acting
Judge of the Labour Court
Appearances
For
the Applicant:
Advocate G Fourie
Instructed
by:
Webber Wentzel
For
the Respondent:
Advocate R Venter
Instructed
by:
Thomas and Swanepoel Inc.
[1]
This fact should have been acceded to, by the applicant, upfront at
the arbitration. Whilst the chairperson’s mistake could
have
been remedied at the internal appeal (it was not) it could not be
remedied at Arbitration.
[2]
See:
Woolworths
(Pty) Ltd / SACCAWU and Others
[2017]
ZALAC 54.
[3]
At page 43 of the transcribed record.
[4]
2003 (1) SA 11
(SCA) at para 14I –15E Where it was held that:
‘To conclude on the disputed issues a court makes findings on
(a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to (a), the court's
finding
on the credibility of a witness will depend on its
impression about the veracity of the witness. That in turn will
depend on
a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness' candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness' reliability will depend, apart from the factors
mentioned
under (a) (ii), (iv) and (v) above, on (i) the opportunities he had
to experience or observe the event in question
and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation
of the probabilities and
improbabilities of each party's version on each of the disputed
issues. In the light of its assessment
of (a), (b) and (c) the court
will then, as a final step, determine whether the party burdened
with the onus of proof has succeeded
in discharging it. The hard
case, which will doubtless be the rare one, occurs when the court's
credibility findings compel it
in one direction and evaluation of
the general probabilities in another. The more convincing the
former, the less convincing
will be latter. But when all factors are
equipoised probabilities prevail.’
[5]
[2002] ZASCA 14
;
2002 (4) SA
661
(SCA).